Golan v. Holder – Hollywood & the Public Domain

November 16, 2011

By Genevieve Tung, Biddle Law Library Intern

A new U.S. Supreme Court term often promises high drama, but it is especially likely when Hollywood industry players are among the parties and amici. Such is the case of Golan v. Holder, which was argued before the Court on October 5, 2011. Golan has raised questions about the intersection of copyright and First Amendment law as well as wide-ranging policy issues about the nature of the public domain.

The Golan petitioners are a group of “orchestra conductors, educators, performers, film archivists, and motion picture distributors” who use public-domain works for their livelihoods. They are challenging a 1994 law that effectively removed a large number of foreign works from the public domain in the U.S. by “restoring” copyright terms that applied to the works in their countries of origin. Congress changed the law within the context of international negotiations on the General Agreement on Tariffs and Trade (GATT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Proponents of the change argued that recognizing foreign copyrightsin the U.S. would help ensure reciprocal protection for U.S. copyrights in other countries. The Golan petitioners argued that removing the works from the public domain violated their First Amendment rights. While several of the now-copyrighted works are well-known (including Pablo Picasso’s Guernica, films by Hitchcock and Fellini, and compositions by Dmitri Shostakovitch) the total number of affected works may reach into the millions. The majority of these are likely “orphan works” for which it is often difficult to to ascertain ownership.

The Golan case has attracted attention from intellectual property specialists and other scholars. Penn’s own Peter Decherney, an Associate Professor of English and Cinema Studies and author of a forthcoming book, Hollywood’s Copyright Wars, From Edison to the Internet, submitted an amicus brief on behalf of the petitioners.

Biddle’s Electronic Resources collection is a great place to start research into current and historical Supreme Court cases. You can find more information about Golan (and other Supreme Court cases), find briefs, and listen to recordings of oral arguments via Oyez.com. You can also find Court dockets, amici information, questions presented, and other information on the Supreme Court’s website, SupremeCourt.gov. To search or learn more about TRIPS and other international trade